Shortly after federal health-care reform legislation passed the U.S. House Sunday, Texas Attorney General Greg Abbott (pictured) e-mailed a news release indicating the state will join other states in challenging the measure. The press release reads as follows:
The federal health care legislation passed tonight [Sunday night] violates the United States Constitution and unconstitutionally infringes upon Texans' individual liberties. To protect all Texans' constitutional rights, preserve the constitutional framework intended by our nation's founders, and defend our state from further infringement by the federal government, the State of Texas and other states will legally challenge the federal health care legislation.
Jerry Strickland, spokesman for the Texas Office of the Attorney General, did not immediately respond to a request to interview Abbott on what the AG believes are unconstitutional provisions in the bill. Strickland refers those with questions to a Jan. 6 letterthat Abbott wrote to U.S. Sens. John Cornyn and Kay Bailey Hutchison, R-Texas. Among other concerns in his letter, Abbott cites the provision in the bill that requires individuals to buy health insurance or face a tax penalty. According to Abbott’s letter, the commerce clause of the U.S. Constitution does not give Congress authority to do that. Two constitutional law professors disagree. University of Texas School of Law professor Lucas A. “Scot” Powe Jr. says, “The mandate is a tax; you don’t have to buy insurance.” Powe says anyone who believes Congress does not have the power to tax has forgotten about April 15, the deadline for Americans to send their income tax returns to the Internal Revenue Service. Powe says there are no constitutional grounds for a suit challenging the health reforms. Charles W. “Rocky” Rhodes, a professor at South Texas College of Law, says that under current U.S. Supreme Court case law, if the federal government can bar people from growing medical marijuana for their own use in their own backyards, “it seems inconceivable to me that the government can’t regulate people’s choices that would impact and affect the multibillion dollar health care industry.” But Rhodes says that if certain provisions in the bill — such as the provision that exempts Nebraska taxpayers from paying higher costs for the Medicaid program — are not fixed by a follow-up bill, there might be grounds for a suit. “If some sorts of things like that don’t get fixed, there are some potential constitutional challenges to that,” Rhodes says. But Powe says there is no constitutional argument against the Nebraska compromise. “It’s just an outrageous provision,” Powe says.
-- Mary Alice Robbins